Inmate’s surgery case gets an assist

Advocacy group backs sex change

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A gay and transgender-rights advocate group has signed on to assist in the case of Michelle Kosilek as the convicted killer’s fight for a medically recommended sex-change operation prepares to make an unusual appearance before a full federal appeals court in Boston.

Jennifer Levi, director of Gay and Lesbian Advocates and Defenders’ Transgender Rights Project, petitioned to be involved in the case to assist Kosilek’s lawyer, Joseph L. Sulman, as he and his client get ready to go before the nine judges of the US Court of Appeals for the First Circuit – the final appellate stage before the US Supreme Court. A hearing is scheduled May 8.

“The Eighth Amendment prohibits state officials from interfering with medical treatment for prisoners,” Sulman said in a statement. “Yet this is exactly what the Department of [Correction] has done ever since its own doctors recommended sex assignment surgery for Michelle Kosilek nine years ago.”

A lower court had already found that the Department of Correction, by refusing to provide the doctor-recommended surgery for Kosilek, had violated her Eighth Amendment right against cruel and unusual punishment, or punishment in excess of her sentence. The US Supreme Court has ruled that prisoners are entitled to medical care, regardless of the crimes for which they were convicted.

A three-member panel of the Court of Appeals had upheld the lower court’s ruling in January. At the request of the state Department of Correction, the full court took an extraordinary — and rare — step in agreeing to hear the case.

Judge Juan Torruella wrote a dissenting opinion in the original decision saying the case did not rise to excessive punishment, creating a split among the panel.

Levi and GLAD, who have long supported Kosilek’s request, asked to sign on to the case Friday to assist Sulman, noting a lead lawyer in the case recently stepped aside for a state government job.

Levi said in a statement that the Department of Correction has recognized that Kosilek suffers from gender identity disorder, that it is a serious illness and that doctors have recommended surgery, and still the department has not provided the operation.

The Department of Correction maintained in court papers filed Friday that it is providing Kosilek with adequate care, that the surgery is not necessary, and that US District Court Judge Mark L. Wolf erred in ordering the surgery.

The Barnstable County sheriff’s office also filed court documents supporting the Department of Correction’s opposition to providing the surgery, noting that county jails could be affected by the court’s decision, because they are subjected to the same standards as the state prison system.

“The decision will have impact on institutional security decisions,” the sheriff’s office said.

Kosilek, who was born Robert, was convicted in the 1990 killing of his wife, Cheryl.

Kosilek initiated a name change to Michelle after being convicted and imprisoned. The Globe is referring to her as a woman because that is the gender with which she identifies.

Doctors first recommended in 2005 that Kosilek undergo the sex-change operation, saying her disorder was serious and that the surgery was the only adequate treatment.

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